A bill that would define
drivers as impaired if certain set quantities of illicit drugs or their
metabolites are detected in their blood or urine sailed through the Ohio
Senate last week, but may have been knocked off course this week in the
House as opponents mobilized to amend or defeat it. The bill, a pet
project of Hope Taft, the wife of Republican Gov. Robert Taft, would make
Ohio the second state after Nevada to set precise measures of amounts of
illegal drugs that would be considered per se evidence of impaired driving.

Drunk driving laws use a
per se measure -- typically a 0.08% blood alcohol level -- and assume that
drivers above that level are impaired. But the
national push to enact drugged driving laws announced in November 2002
by drug czar John Walters has typically favored "zero tolerance" drugged
driving statutes, where any detectable amount of a drug or its metabolites
is considered evidence of impaired driving. At least ten states have
passed such laws since the campaign began.

Opponents of such measures
argue that because zero tolerance drugged driving laws have no scientific
basis -- the presence of a drug or metabolite does not necessarily prove
impairment -- their real purpose is not to increase highway safety but
to find yet another way to punish drug users. Since most drug users
are marijuana smokers and since marijuana is notorious for lingering in
one's system, opponents view such laws primarily as an attack on marijuana
users. While per se standards are less obnoxious than zero tolerance
standards, opponents say, those standards must be set at drug levels that
are actually scientifically linked to impairment.

The legislation, Senate
Bill 8, approved on a 30-1 vote by the Ohio Senate sets the following
standards, among others:

10 nanograms of marijuana per
milliliter in the person's urine, or two nanograms per milliliter in the
blood. (A nanogram is one-billionth of a gram and a milliliter is
a unit of volume equal to one-thousandth of a liter.)

150 nanograms of cocaine per
milliliter in urine, or 50 nanograms per milliliter in blood.

2,000 nanograms of heroin per
milliliter in urine, or 50 nanograms per milliliter in blood.

"Although we have a standard
of 0.08 for alcohol, we have no... standard for driving under the influence
to measure drugs," said state Sen. Steve Austria (R-Beavercreek), the bill's
sponsor. "Cases become subjective and vary from court to court."

"What it will do is give
us the same objective measure for drugs that exists for alcohol, so a jury
or a judge can have confidence that the person we have arrested has got
levels that are high enough that it did not accidentally or involuntarily
get into their system," Captain John Born, legislative lobbyist for the
Ohio Highway Patrol, told the Senate.

But Paul Armentano, executive
director of the National Organization for
the Reform of Marijuana Laws and an authority on drug testing, told
DRCNet the bill would roll up unimpaired marijuana users in its dragnet.
"Because marijuana's main metabolite, THC-COOH, remains detectable in certain
bodily fluids, particularly urine, for days and sometimes weeks after past
use, this legislation seeks to define sober drivers as if they were intoxicated,"
he said. "Someone who smokes marijuana is impaired as a driver at
most for a few hours, certainly not for days or weeks. To treat all
marijuana smokers as if they are impaired, even when the drug's effects
have long worn off, is illogical and unfair."

Armentano laid out three
broad objections to the bill as written. "We object to including
drug metabolites as indicative of impairment when clearly there is no scientific
evidence that the presence of metabolites establishes either recent drug
use or impairment," he said.

"Also, there is no scientific
consensus that an individual who has two nanograms of THC in his blood
is either impaired or has an elevated risk of a traffic accident," Armentano
said. "The science on this is in its infancy, but there is data out
there to suggest that when a person tests above five nanograms, and closer
to ten, that there is an elevated risk. Two nanograms is not a standard
associated with impairment. If they are going to use a cut-off standard
it should be in line with scientific evidence and associated with actual
impairment. The standard for alcohol was picked because there is
evidence that when a person reaches that threshold, he is a danger on the
road. Marijuana should be held to the same standard -- not a different
one with no scientific basis," he argued.

The bill's per se standard
is also objectionable for another reason, Armentano said. "Rather
than setting a per se standard that says all a prosecutor needs is a toxicology
report to win a conviction, we would like that changed to a rebuttable
presumption, where the driver might be presumed to be impaired, but could
still present evidence to show that he was not."

Armentano has been working
hand in hand with former Ohio legislator Ed Orlett, the Ohio representative
for the Drug Policy Alliance to
win changes in the bill. In a House committee hearing this week,
Orlett's testimony, along with that of a toxicologist who was called to
testify by bill supporters, succeeded in sowing some doubt in legislator's
minds about the measure.

"I told the committee our
position is that metabolites should not be in the bill because they only
detect usage, not impairment," Orlett told DRCNet. "I also testified
that the limit should be five nanograms, not two, if they want a reasonable
standard supported by the scientific evidence."

With copies of Orlett's written
testimony in hand before the hearing, committee conservatives attempted
to blunt his remarks by bringing in Dr. James Ferguson, a toxicologist
and former county coroner, to testify to the appropriateness of the standards,
but to the committee's surprise, and Orlett's pleasure, Ferguson agreed
that metabolites should be stricken from the bill and that the blood level
for marijuana should be set not at two nanograms but above five nanograms.

"The Highway Patrol about
fell out of their chairs when they heard that," Orlett chortled.

Shocking the Highway Patrol
is one thing; getting the bill changed is another. But, said Orlett,
there are signs that will happen. "Rep. Sites (R-Cincinnati) is one
of the most conservative members of the committee, but when I asked him
if he would be drafting appropriate amendments to the bill, he said he
was already working on it."

To get the bill modified
to remove its most egregrious provisions would be a tremendous victory,
said Orlett. "This is Hope Taft's pet project, and it has been prioritized
by the governor as one of the top seven bills he wants passed this session."

If the House does amend the
bill, it will have to go back to the Senate, and if the Senate declines
to accept the amended version, the bill would have to go to conference
committee, Orlett said. But he pronounced himself well-satisfied
at being able to throw a wrench in the works already. "I thought
this was a done deal," he confessed. "I know when I hear a train
a-coming, but maybe we've derailed this."

PERMISSION to reprint or
redistribute any or all of the contents of Drug War Chronicle (formerly The Week Online with DRCNet is hereby
granted. We ask that any use of these materials include proper credit and,
where appropriate, a link to one or more of our web sites. If your
publication customarily pays for publication, DRCNet requests checks
payable to the organization. If your publication does not pay for
materials, you are free to use the materials gratis. In all cases, we
request notification for our records, including physical copies where
material has appeared in print. Contact: StoptheDrugWar.org: the Drug Reform Coordination Network,
P.O. Box 18402, Washington, DC 20036, (202) 293-8340 (voice), (202)
293-8344 (fax), e-mail [email protected]. Thank
you.

Articles of a purely
educational nature in Drug War Chronicle appear courtesy of the DRCNet
Foundation, unless otherwise noted.